1 Cow. 513 | N.Y. Sup. Ct. | 1823
Lead Opinion
It is very clear that Hicks was not liable in his individual capacity, as maker of the note. The case is distinguishable from Taft v. Brewster and others, (9 John. 334.) There the defendants acknowledged themselves bound, by the description of “ Trustees of the Baptist Society of the town of RichfieldThe Court considered it a mere descriptio personarían ; and that the defendants
In 7 Cranch, 299, (Bank of Columbia v. Patterson,) the question whether a corporation could make a contract legally binding, except under its seal, was fully examined. It was considered as sound law, that wherever a corporation is acting within the scope of the legitimate purposes of its institution, all parol contracts, made by its authorized agents, are express promises by the corporation ; and all duties imposed on them by law, and all benefits conferred at their request, raise implied promises, for the enforcement of which an action may well lie. This Court, on several occasions, have taken the same ground. Although the particular cases may not have required them to carry the dóctrine to the same extent, they have nevertheless considered the law correctly settled by the Supreme Court of the United States. (12 John. 227, Danforth v. Schoharie Turnpike Company. 14 John. 118,Dun v. Rector of St. Andrews’ Church.) The gre.at convenience of such a rule, indeed the necessity, in some cases, to prevent a failure of justice, will not be doubted. Modern decisions (although it may have been anciently held otherwise) warrant a relaxation of such technical strictness, not answering any salutary purpose. The note declared on was given for a de
The remaining inquiry is, whether the plaintiff could sustain an action on this note against Horsefield as endorser ? I incline to think he could not. As to personal liability to the plaintiff on the note, I apprehend he stands on the same ground as the defendant. To Roe, the holder, or any other third person, he might be holden ; but here is a different state of facts. Horsefield acted as agent in this transaction, and Mott knew it: he also knew that the note was given by the company for their proper debt. Titus, the defendant’s witness, says the plaintiff and Horsefield called together on the defendant, and stated that they had agreed to give Roe a note of the company, and wished the defendant to sign it as president. The note was executed and endorsed by the plaintiff and Horsefield, and passed to Roe, who recovered the amount from the plaintiff. Jacob C. Mott testified, that he stated to the defendant, that he understood he was to put glass in the plaintiff’s hands, to secure the payment; of the
In examining the question of Uorsefieldh interest, I have kept out of view every thing testified by himself; for when, he was objected to, he ought or ought not to have been rejected. If the former, and yet is admitted, as in this case, de bene esse, we cannot receive his testimony to remove the objection, which might otherwise be urged against it. But if, from the disclosures of other witnesses in the course of the trial, it appears that he stands indifferent, the Court will receive his testimony. It is on this ground I have considered the question.
If Horsejield was competent, I think the verdict is supported by the weight of testimony, and ought not to be disturbed.
But it is contended, that if Horsejield was not personally liable, then there is a fatal variance between the note declared on, and the note proved. This objection is nor well founded. The description of the note and the endorse-
fey the averment, that Horsefield endorsed, must be understood, that his interest passed to the plaintiff. This allegation is satisfied by the evidence at the trial. • I am of opinion that the plaintiff is entitled to judgment.
ít is perfectly well settled, that if ¡¿ person undertake to contract &s agent for an individual or Corporation, arid contracts in á manner which is riot legally binding upon his principal, he is personally responsible (White v. Skinner, 13 John. Rep. 307. Randal v. Van Vechten and others, 19 id. 60. Taft v. Brewster and others, 9 id. 334. Tippets v. Walker, 4 Mass. Rep; 595. 7 T. R. 207. Thomas v. Bishop, Cas. Temp. Hard. 1. 3 John. Cas. 70.) And the agent, when sued uptinsuch a contract, Can exonerate hiniself frdm personal liability, only by shewing his authority to bind those for vidiorn h'é has Undertaken to act. It is not for the plaintiff to shew, that he had not Authority. The defendant must show affirmatively, that he had. But as the authority of the defendant, to" act for the company on this occasion, was riot questioned at the trial, we are now,' perhaps, bound to presume it.
If the defendant was instructed or authorized by the company to make the note in question, then there is no doubt that they are liable to the plaintiff for the amount which he has paid ; and if the company are liable, the defendant is not. It is either the note of the company, or of Whitehead Hicks. It Cánnot be both.
The ancient technical doctrine, that a corporation could not contract, except under its corporate seal, is now exploded. There are a variety of cases in this Court, in which they have been held liable upon implied a's well
The Woodstock Glass Company, therefore, are clearly responsible to the plaintiff, either in an action upon the note itself, or in' an indebitatus assumpsit for money paid to their use. It seems to follow, that the defendant cannot be liable upon the note.
But the special agreement of the defendant to deliver to the plaintiff the first glass which he should receive from the company, as his indemnity against his endorsement, was exclusively personal; and if the making and breach of it were proved by competent testimony, there is no ground for disturbing the verdict.
This presents the question whether Israel Horsefield, the payee and endorser of the note, was a competent witness to prove that agreement.
It is contended by the defendant’s counsel, that Horsefield was directly and strongly interested in procuring a recovery by the plaintiff against the defendant, upon this collateral guaranty, because, if he failed to recover against him, he would resort to the witness upon his endorsement. And Hicks, not being liable upon the note as maker, the endorsee could not recover over from him. It might, perhaps, be sufficient to say, in reply to this argument, that the company would be liable to the endorser, if Hicks was not; and although it may be inferred from the case, that the company were not in very good credit, it does not appear that they were insolvent. But this question is susceptible of another and more conclusive answer. The plaintiff could not recover against
Was Horsefield?s endorsement upon this note conditional or absolute ? There can be no doubt, that it was not the • intention of the parties, that either Hicks or Horsefield should be individually liable upon the note. And this is apparent upon the face of it. It is drawn in the name of The president and directors of the Woodstock Glass Company, signed by Hicks as president, and endorsed by Horsefield as agent, carrying, upon the face of it, strong, if not conclusive evidence, that it was a company transaction, and that Hicks and Horsefield acted in their official characters only. It is not necessary for us to determine whether a bona fide holder of this note, without notice of the original transaction, could recover upon it against the endorser or not $ though I should be strongly of the opinion that he could not, as enough appears upon the note to put him upon inquiry. But the plaintiff, with a full knowledge of all the facts, most clearly cannot recover .against Horsefield in his individual character, admitting the company to be bound by the note. Whether, if the contract was not binding upon the company, Horefield would be personally responsible (as I have already shown Hicks would,) it is not necessary to discuss. I am, therefore, of opinion, that Horsefield was a disinterested witness, and was properly admitted by the Judge to prove the guaranty of the defendant,
There is no force in the objection, that if Horsefield is not personally responsible as endorser, there is a variance between the note declared upon and that given in evidence. In the count upon the guaranty, upon which the plaintiff must recover, the note is stated merely by way of" inducement to, and as explanatory of the special agreement, It is not the contract declared upon. It is mere matter of evidence, and the question of variance cannot arise,
The plaintiff is entitled to repover, not only the amount pi the note, but also the damages and costs sustained in con
Upon the whole case, therefore, I am of opinion,
1. That the note in question is binding upon The Woodstock Glass Company, and that the defendant, therefore, is not personally responsible upon it.
2. That he is responsible upon his guaranty, and that Horsejield, the endorser, was a competent witness to prove the special agreement.
Dissenting Opinion
(After stating the facts.) A new trial is asked on two grounds : 1. That Horsejield was not a competent witness; 2. That if admissible, as a witness, then the evidence does not support the declaration.
It appears to me, that Horsejield is liable to the plaintiff as endorser ; and, consequently, is directly interested, whether the note be considered that of the company, or the defendant. It is alleged that he is not interested, because it was no part of the original understanding that he was to be liable ; that his endorsement, as agent, was a notice to all subsequent holders, that he would be responsible as agent only, and not individually. The facts upon which this question must be decided, are such as appear in the case, independent of Horsejield’s testimony ; and these shew nothing about the original execution of the note. Horsejield, it is true, signed the endorsement, “ Israel Horsejield, agent.” But why agent ? Agent for whom ? He is the payee of the note individually, and it does not appear, except from his own testimony, that he was agent for the company. They cannot be sued upon this endorsement ; and no judgment could be rendered against Horsejield, which would bind their property. He is therefore liable personally, or there is no liability attached to this endorsement. In Thatcher v. Dinsmore, (5 Mass. Rep. 299,) it is decided that the guardian of an insane person cannot avoid
I concur in the answer, which has been given to the argument that this witness was rendered indifferent by a balance of interest, being liable at all events, either to the plaintiff or defendant, the latter of whom, as surety, would be entitled to stand in the place of the former. The very contract relied upon, pre-supposes that the defendant must be put in funds by the company, before any liability could attach to him personally. Being thus paid by the maker, he could never afterwards call upon the endorser.
It then becomes important to enquire whether, independent of jHorsefield’s testimony, there was sufficient evidence before the jury to warrant the verdict. Rejecting the testimony of Horsefield, the facts proved are—the making of the note —the recovery upon it against the plaintiff, as endorser—the admission of the defendant, that the plaintiff’s inducement to endorse was the agreement, that glass enough should be put into the hands of the latter to indemnify him—and the defendant added that, but for the election of Mr. Abeel, as director, the agreement would have been complied with. A further admission was, that the first glass which came down, was to have been thus appropriated ; and that if the defendant had received glass enough for the pur. pose, he ought to pay the note; but he at the same time denied that he had received enough. This is the amount of ' the testimony on the part of the plaintiff, rejecting Horse-
The plaintiff, then, cannot sustain this verdict, unless the defendant is personally liable on the note. He is so, undoubtedly, unless the company is liable. (Randall v. Van Vechten, 19 John. 63, per Platt, J. and the cases cited by him.) Formerly it was holden that a corporation could be bound by its corporate seal only. Later adjudications have established a different doctrine ; (Chitty on Bills, 20 ; and it is now perfectly well settled, that an action of assumpsit will lie against a corporation upon the simple contract of its authorized agents, when acting within the scope of the legitimate purposes of such incorporation. (Bank of Columbia v. Patterson’s Adm’r, 7 Cranch, 306. Danforth v. Schoharie Turnpike Company, 12 John. 227. Dunn v. The Rector, &c. of St. Andrew’s Church, 14 id. 118. Randall v. Van Vechten, 19 id. 60.)
Independent of Horsefield’s testimony, it appears that the "note was given by the defendant as president of the Woodstock Glass Company, for wood furnished the company in prosecuting the manufacture of glass, the purpose of .the incorporation. The company being liable, even on an implied promise, there can be no need of authority to shew that they are equally liable upon an express one—a promissory note. A corporation may give a promissory note, negotiable within the statute of Ann, (1 R. L. 151 ;) for. should it be objected, that this statute is confined to notes when drawn by any person, &c. and that corporations are not mentioned, I answer, it has been decided by this Court, that the word person includes corporations in a variety of cases ; (15 John. 382;) and there is no doubt, that upon a fair construction of this act, corporations are in-eluded. In my opinion, therefore, this was a good promissory note against the company.
I agree, that if Horsefield is to be considered a mere agent, and not liable to the plaintiff at all, he is a competent witness, and his testimony supports the declaration ; for the variance of the word agent, added to his name, I do not think materiah It might be rejected as surplus-
Judgment for the plaintiff.